Table of contents:
Element:
The Pre-Trial Chamber in Lubanga held that:
"The Chamber considers that it is precisely the co-perpetrators mutual awareness and acceptance of this result which justifies (a) that the contributions made by the others may be attributed to each of them, including the suspect, and (b) that they be held criminally responsible as principals to the whole crime."[1]
With regard to the subjective requirements of co-perpetration, the Pre-Trial Chamber held in Bemba Gombo that:
"[ ] In particular, the suspect must [ ] (b) be aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes [ ]."[2]
In Abakaer Nourain and Jerbo Jamus, the Pre-Trial Chamber stated that:
"In the view of the Chamber, the subjective requirements of co-perpetration are the following: [ ] (b) the suspect and the other co-perpetrators must be mutually aware and mutually accept that implementing the common plan will result in the fulfilment of the objective elements of the crimes [ ]."[3]
In Abu Garda, the Pre-Trial Chamber held that:
"As regards the subjective requirements, both forms of liability require that [ ] (ii) the suspect and the other co-perpetrators are all mutually aware and mutually accept that implementing their common plan may result in the realisation of the objective elements of the crime [ ]."[4]
Regarding the standards required for the mutual acceptance by the suspect and the other co-perpetrators, the Chamber in Lubanga stated that:
Secondly, if the risk of bringing about the objective elements of the crime is low, the suspect and the other co-perpetrators must have clearly or expressly accepted the idea that implementing the common plan would result in the realisation of the objective elements of the crime."[5]
The Bemba Gombo the Pre-Trial Chamber held that:
"The second subjective element that needs to be satisfied under the theory of coperpetration is the (1) co-perpetrators mutual awareness that implementing the common plan will result in the fulfillment of the material elements of the crimes; and yet (2) they carry out their actions with the purposeful will (intent) to bring about the material elements of the crimes, or are aware that in the ordinary course of events, the fulfillment of the material elements will be a virtually certain consequence of their actions."[6]
M.4.3. Intent or awareness was shared with other joint perpetrators
Footnotes:
[1] ICC, Prosecutor v. Lubanga Dyilo, "Decision on the confirmation of charges", ICC-01/04-01/06-803, 30 September 2008, para. 361, 362.
[2] ICC, Prosecutor v. Jean-Pierre Bemba Gombo, "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo", ICC-01/05-01/08-424, 15 June 2009, para. 351.
[3] ICC, Prosecutor v. Banda, A.N., "Corrigendum of the "Decision on the Confirmation of Charges"", ICC-02/05-03/09, 7 March 2011, para. 150.
[4] ICC, Prosecutor v. Abu Garda, "Decision on the Confirmation of Charges", ICC-02/05-02/09, 8 February 2010, para. 161.
[5] ICC, Lubanga Confirmation Decision 29 January 2007, para. 363, 364.
